BORGWARNER INC. AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN Stock Units Award Agreement (For Employees)
Exhibit 10.1
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
Stock
Units
Award
Agreement
(For
Employees)
THIS
Award Agreement (the “Agreement”) dated as of __________, by and between
BORGWARNER INC., a Delaware corporation (the “Company”) and
______________________ (the “Employee”), is entered into as
follows:
WITNESSETH:
WHEREAS,
the Company has established
the BorgWarner Inc. Amended and Restated 2004 Stock Incentive Plan (the “Plan”),
a copy of which is attached hereto or which has been previously provided to
the
Employee;
WHEREAS,
the Compensation Committee of
the Board of Directors (the “Compensation Committee”) of the Company has
determined that the Employee be granted Stock Units pursuant to the terms of
the
Plan and the terms of this Agreement;
NOW
THEREFORE, in consideration of the
foregoing and the mutual covenants hereinafter set forth:
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1.
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Award
of Stock Units. The Company hereby awards to Employee on
this date, [####] Stock Units. Each Stock Unit awarded
hereunder represents a contingent right to receive one share of the
Company’s common stock, par value $.01 (“Stock”) upon satisfaction of the
conditions for vesting as provided in Paragraph 4 of this Agreement
and
subject further to the terms of the Plan and the additional terms
and
conditions of this Agreement (the
“Award”).
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2.
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Stock
Units. The Company shall credit the Employee’s Stock Units
to a Stock Units account established and maintained for the Employee
on
the books of the Company payable only in Stock. The account
shall constitute the record of the Stock Units awarded to Employee
under
this Agreement, is solely for accounting purposes, and shall not
require a
segregation of any Company assets.
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3.
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Dividend
Equivalents. Whenever the Company pays any cash or other
dividend or makes any other distribution in respect of the Stock,
the
Employee’s account shall be credited with an additional number of Stock
Units (including fractions thereof) determined by multiplying (i)
the
number of Stock Units credited to the Employee on the dividend record
date
by (ii) the dividend paid on each share of Stock, and dividing the
result
of such multiplication by (iii) the Fair Market Value of a share
of Stock
on the dividend payment date. Credits shall be made effective
as of the date of the dividend or other distribution in respect of
the
Stock. Dividend equivalents credited to the Employee’s account
shall be subject to the same restrictions as the Stock Units in respect
of
which the dividends or other distribution were credited, including,
without limitation, the Award’s vesting conditions and distribution
provisions.
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4.
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Vesting
of Stock Units. Subject to the terms and conditions of this
Agreement and to the provisions of the Plan , the Stock Units shall
vest
in accordance with the following
schedule:
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Date Vested
Percentage
provided
however, that:
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a.
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In
the event of the Employee’s Termination of Employment for Cause, the
Employee shall forfeit all of the Stock Units awarded hereby and
all
rights to receive Stock in payment of such Stock
Units;
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b.
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In
the event of Employee’s voluntary Termination of Employment, the Employee
shall forfeit all rights to Stock Units not yet vested as of the
date of
Employee’s Termination of
Employment;
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c.
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(i)
In the event of a Change in Control, any remaining restrictions
applicable to any then unvested Stock Units shall lapse, and such
Stock
Units shall become free of all restrictions and become fully vested;
and
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d.
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In
the event of the Employee’s death, Disability, involuntary termination by
the Company without Cause or Retirement prior to the vesting of the
Stock
Units, the Compensation Committee shall have the discretion to waive,
in
whole or in part, any or all remaining payment limitations with respect
to
the Stock Units awarded under this
Agreement.
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5.
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Distribution
of Stock. The Company
shall
deliver Stock to the Employee in settlement of the Stock Units awarded
by
this Agreement equal to the number of the Employee's vested Stock
Units
(including any additional Stock Units acquired as a result of dividend
equivalents that have vested). If Employee is a “Specified
Employee” (as defined by regulations under Internal Revenue Code Section
409A (“Section 409A”)), at the time of his Termination of Employment,
payment shall be made on the first day of the seventh month following
the
month in which such Termination of Employment occurs, or, if earlier,
the
date of the Employee’s death. If the Employee is not a
“Specified Employee” at the time of distribution, payment shall be made to
the Employee on or after the Employee’s Termination of Employment, in the
year in which such Termination of Employment
occurs.
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6.
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Nontransferability. The
Stock Units awarded under this Agreement, and any rights and privileges
pertaining thereto, are not subject to anticipation, alienation,
sale,
transfer, assignment, pledge, or encumbrance by the Employee or by
the
Employee's beneficiary, in any manner, by operation of law or otherwise,
and shall not be subject to execution, attachment or similar
process.
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7.
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No
Rights as a Stockholder. Prior to the actual delivery of
Stock to the Employee in settlement of the Stock Units awarded and
vested
hereunder (if any), the Employee shall have no rights as a stockholder
with respect to the Stock Units or any underlying
Stock.
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8.
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No
Right to Continued Employment. Nothing contained in the
Plan or this Agreement shall confer upon the Employee any right to
continued employment nor shall it interfere in any way with the right
of
the Company or any subsidiary or Affiliate to terminate the employment
of
the Employee at any time.
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9.
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Terms
of the Plan Shall Govern. The Award is made pursuant to,
and is subject to the Plan, including, without limitation, its provisions
governing a Change in Control and Cancellation and Rescission of
Awards. In the case of any conflict between the Plan and this
Agreement, the terms of the Plan shall control. Unless
otherwise indicated, all capitalized terms contained in this Agreement
shall have the meaning assigned to them in the
Plan.
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10.
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Withholding
of Taxes. The Employee shall pay to the Company or make
arrangements satisfactory to the Company regarding the payment of
any
Federal, state, local or foreign taxes of any kind required by law
to be
withheld, on or before any such taxes with respect to the Stock Units
are
due.
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11.
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Governing
Law. The Award made and actions taken under the Plan and
this Agreement shall be governed by and construed in accordance with
the
laws of the State of Delaware without taking into account its conflict
of
laws provisions.
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12.
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Binding
Effect. Subject to the limitations stated above, this
Agreement shall be binding upon and inure to the benefit of the parties’
respective heirs, legal representatives successors and
assigns.
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13.
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Changes
in Capital or Corporate Structure. In the event of any
merger, reorganization, consolidation, recapitalization, stock dividend,
stock split, extraordinary distribution with respect to the Stock
or other
change in corporate structure affecting the Stock, the number of
Stock
Units awarded under this Agreement shall be adjusted pursuant to
Section
4(e) of the Plan.
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14.
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Entire
Agreement. This Agreement is the entire agreement between
the parties hereto, and all prior oral and written representations
are
merged into this Agreement. The headings in this Agreement are
inserted for convenience and identification only and are not intended
to
describe, interpret, define or limit the scope, extent, or intent
of this
Agreement or any provision hereof.
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15.
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Notices. Any
notice or other communication required or permitted under this Agreement
must be in writing and must be delivered personally, sent by certified,
registered or express mail, or sent by overnight courier, at the
sender's
expense. Notice shall be deemed given when delivered personally or,
if
mailed, three days after the date of deposit in the United States
mail or,
if sent by overnight courier, on the regular business day following
the
date sent. Notice to the Company should be sent to Attention:
Vice President, Human Resources, BorgWarner World Headquarters, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇▇. The Company may
change the person and/or address to whom the Employee must give notice
under this paragraph by giving the Employee written notice of such
change,
in accordance with the procedures described above. Notices to
or with respect to the Employee shall be directed to the Employee,
or to
the Employee's executors, personal representatives or distributees,
if the
Employee is deceased, or the assignees of the Employee, at the Employee's
last home address on the records of the
Company.
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16.
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Amendment
of the Agreement. The Company and the Employee may amend
this Agreement only by a written instrument signed by both
parties.
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17.
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Counterparts. This
Agreement may be executed in one or more counterparts, all of which
together shall constitute but one
agreement.
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18.
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Section
409A. Within the time period permitted by the applicable
Treasury Regulations, the Company may, in consultation with the Employee,
modify the Agreement, in the least restrictive manner necessary and
without any diminution in the value of the payments to the Employee,
in
order to cause the provisions of the Agreement to comply with the
requirements of Section 409A, so as to avoid the imposition of taxes
and
penalties on the Employee pursuant to Section
409A.
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* * * * *
IN
WITNESS WHEREOF, BORGWARNER INC. and the Employee have executed this Agreement
to be effective as of the date first written above.
By:
_________________________________
Title: _________________________________
I
acknowledge receipt of a copy of the Plan (either as an attachment hereto or
that has been previously received by me) and that I have carefully read this
Agreement and the Plan. I agree to be bound by all of the provisions
set forth in this Agreement and the Plan.
__________________
__________________________
Date EMPLOYEE